Legal Opinion

Stricker v. Wakeman

The Superior Court of New York City

Decided November 15, 1861PublishedCited by 2 opinions

Motion, to set aside execution. On October 9th, 1861, plaintiff perfected judgment against defendant, and on the same day issued an execution upon the judgment to the sheriff of the city and county of Eew York, under which execution the sheriff levied upon a stock of goods of defendant, and put a man in charge. After .levy, defendant appealed to the general term, and gave an undertaking to procure a stay of proceedings on appeal, and served a copy of the same on the sheriff.

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Motion, to set aside execution. On October 9th, 1861, plaintiff perfected judgment against defendant, and on the same day issued an execution upon the judgment to the sheriff of the city and county of Eew York, under which execution the sheriff levied upon a stock of goods of defendant, and put a man in charge. After .levy, defendant appealed to the general term, and gave an undertaking to procure a stay of proceedings on appeal, and served a copy of the same on the sheriff. Defendant’s sureties were excepted to, and justified. Defendant then moved, at special term, to set aside the execution…

1Opinion of the CourtWoodruff, J.

—It is clear, I think, upon a review of cases already decided, and according to the true import of the Code, that the taking of an appeal from the judgment, and giving the security prescribed by the Code, altliQugh they operate as a stay of proceedings and prevent a sale of property levied upon, do not operate to discharge a previous levy, nor supersede an execution issued before the appeal was taken. But the court has power, in the exercise of its discretion in its equitable control over its own judgments and process, to do both, if the ends of justice or the prevention of unnecessary or…

2Cited by2 opinions

  1. Tilley v. WashburnWisconsin Supreme Court · 1895
  2. Skinner v. HannanNew York Supreme Court · 1894

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